of lands for nonpayment of taxes are in rem and not in personam. They operate, if at all, upon the land itself and not merely upon the person in whose name it may have been listed for taxation. * A valid tax title therefore extinguishes all previous titles legal or equitable, inchoate or perfect; and the purchaser takes the premises discharged from all previous liens and incumbrances whatever. It follows then, from the nature of a tax title and the terms of the statute, that a valid sale and conveyance of lands for the nonpayment of taxes will bar even the favored right of dower." In Gwynne v. Niswanger, 20 Ohio, 564, this court said: "A tax title, from its very nature, has nothing to do with the previous chain of title, does not in any way connect itself with it. It is a breaking up of all previous titles. The party holding such title, in proving it, goes no further than his tax deed. The former title can be of no service to him, nor can it prejudice him. * * * In an ordinary case it matters not how many different interests may be connected with the title, what may be the particular interest of the party in whose name the property may be listed for taxation. It may be a mere equitable right-if the land be regularly sold for taxes, the property, accompained with a legal title, goes to the purchaser, no matter how many estates legal or equitable may be connected with it." In Hefner v. North Western Mutual Life Insurance Company, 123 U. S. 747, 8 Sup. Ct. 337, 31 L. Ed. 309, the Supreme Court of the United States had before it for consideration the nature of the tax lien and the effect of a tax deed. The third paragraph of the syllabus in that case is as follows: "If the tax deed is valid, it clothes the purchaser from the time of its delivery, not only with the title of the person assessed for the taxes, but with a new and complete title in the land under an independent grant from the sovereign authority, which bars or extinguishes all prior titles and incumbrances of private persons, and all equities arising out of them." But counsel for defendant in error contend that, even though the rule be as announced in the foregoing authorities, it cannot aid the plaintiffs in error in this case for the reason that, when the plaintiff in error Frank G. Kahle purchased these lands from Birchard A. Hayes, he was already the owner of the legal title, and therefore the tax title acquired by him was swallowed up and merged in his legal title. There are two sufficient answers to this proposition: (1) Section 2899, Rev. St. 1906, provides that "every tract of land and town lot offered for sale by the treasurer as hereinbefore provided, and not sold for want of bidders, shall be and the same is hereby declared to be forfeited to the state; and thenceforth all the right, title, claim, and interest of the former owner or owners thereof, shall be considered as trans

by the sale and conveyance of these lands to Birchard A. Hayes, the legal title thereto of Frank G. Kahle was completely divested and extinguished, and the property passed to said Birchard A. Hayes, as purchaser from, and grantee of, the state of Ohio, as from an original source of title. (2) This being so, the tax title is the better and superior title, and it would not therefore be merged in the legal title. "A superior right is never merged in an inferior one. The whole doctrine of merger proceeds upon the principle of a superior right covering and swallowing up an inferior right, and that keeping those rights separate when they unite in the same person, to the same thing, would be useless. The doctrine of merger never applies when it would work an injury to the owner, or where his interest requires that the rights should have a separate existence." Myers v. Hewitt, 16 Ohio, 449, 453; Bell v. Tenny, 29 Ohio St. 240, 243; Case v. Hall, Adm'r, 52 Ohio St. 24, 36, 38 N. E. 618, 25 L. R. A. 766. It would seem, then, from the very nature of the tax title, and the provisions of the statute, that a valid tax sale, and the maturing of the title in the purchaser-by a failure to redeem the premises sold within the time allowed by statute (section 2907, Rev. St. 1906)-creates in the purchaser a new and original title, and extinguishes all previous titles either legal or equitable. And the auditor's deed executed and delivered in pursuance of such sale transfers to the purchaser the lands sold, discharged from any previous ownership, or claim of title. In the present case, as appears from the statement of facts, the lands in question being delinquent for the nonpayment of taxes and penalty for the year 1894, and the taxes for the year 1895, were on the third Tuesday of January, 1896, forfeited to the state of Ohio. Thereafter, on April 13, 1896, they were sold to L. E. Blackburn at forfeited land sale, and from him passed by mesne conveyances to the defendant in error, A. S. Nisley, and whatever interest or lien the latter has in, or on, said premises was acquired by and through said forfeited land sale of April 13, 1896. After such sale it was incumbent upon the purchaser thereat, L. E. Blackburn, and his successors in interest, to see to it that the taxes subsequently levied and assessed against said lands were paid. This they did not do, but suffered the taxes for the years 1897 and 1898 to become delinquent, and permitted said lands to be again forfeited to the state of Ohio, and to be again sold, for nonpayment of the taxes and penalty due thereon for said years. Having permitted such forfeiture and sale, and said second sale having been in all respects regular and valid, any interest or lien, under section 2910, Rev. St. 1906, that they or either of them may have. had in or on said premises, by virtue of said first tax sale, was by such second sale extin

guished and divested, and was and is therefore unavailing, either as against the title acquired by the purchaser of said lands at the latter sale, or the title of those claiming through or under him. It follows that the lien asserted by the defendant in error against these lands is not a valid incumbrance thereon, and that the courts below erred in holding it to be a valid and subsisting lien, and in decreeing its foreclosure as such. The judgments of the circuit court and the court of common pleas will therefore be reversed and judgment entered for plaintiffs in error upon the undisputed facts. Judgment reversed, and judgment for plaintiffs in error.

place does not appear. The car was a kind that is operated by means of double trolleys, and the conductor in charge of the car was trying to place the trolleys on the wires at the time the car stopped, when the pole of one or both of the trolleys snapped and one or both fell, striking the plaintiff before she had placed herself in contact with the car.

Before argument the court at request of plaintiff gave the following instruction to the jury: "If the jury find from the testimony that the plaintiff had gone to the corner of Franklin avenue and Harrison avenue, and that thereupon the car of the defendant came to said point and stopped for the purpose of taking the plaintiff on board as a passenger, and that it was at a point near the corner where the cars of the defendant were in the habit of stopping to take on passengers, and that plaintiff was standing in the street adjacent to and by the car track along which the car came going to the city, and that the plaintiff intended to get on the car and was about to do so, and the car stopped at the point where she was standing to enable her to do so; and if the jury find that, just as the plaintiff was about to step on the car, she was struck by the broken or falling trolley, then I charge you that, for the purposes of this case, the plaintiff was a passenger on the car, and if the plaintiff was then and there struck and injured by the

(Syllabus by the Court.)

Error to Superior Court of Cincinnati.

Action by Anna Holzenkamp against the Cincinnati Traction Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Plaintiff, Anna Holzenkamp, recovered a judgment against the defendant, the Cincinnati Traction Company, for personal injuries received by her by the falling of the trolley poles or one of the trolley poles of one of defendant's cars as she was about to step upon it on a street in the city of Cincinnati. She avers that she was standing in the street at a point where the car would be supposed to stop; that the car stopped, and thereupon, just as she was about to step upon the car, the trolleys fell and struck and injured her, by reason of the negligence of the defendant, in that the trolleys were defective and were improperly handled. The defendant offered no evidence, excepting as to the extent of the plaintiff's injuries. The undisputed facts are that the plaintiff and three other ladies were standing in the street where there was a "Y" in the track of the defendant and to which place the car would come from the "Y" onto the main track, and where it usually stopped for passengers. The plaintiff and her sister intended to take the car. The sister signaled the car to stop, and it did so, but whether in response to her signal or because it was its usual stopping 78 N.E.-34

the said car, then the presumption arises in the absence of other proof that the traction company was guilty of negligence." And in its general charge the court said: "The law is, as applied to the facts of a case like this, that if a piece of iron or heavy metal which forms part of an overhead apparatus of a railroad of this character breaks and falls down and injures somebody, even one passing by, but more particularly one who is there in proper position to and is about to become a passenger upon this railway, that there the law raises a presumption, out of the mere fact that the thing occurred, that it occurred through the negligence of the defendant. And if no evidence is introduced to you to show you by testimony that this apparatus had been properly inspected, that it was properly built, and that it was, in all respects, such as is usual and proper, and was in a proper condition, and therefore that the accident was simply an accident which no foresight could have prevented, then you are justified in presuming, from the occurrence of the accident itself, that it was through either some defects of the apparatus which could have been remedied and ought to have been remedied, and would have been discovered by proper inspection, or that it resulted through some careless and improper handling, whereby it was made to fall down and produce this injury."

Outcalt & Foraker, for plaintiff in error. Charles W. Baker, for defendant in error..

SUMMERS, J. (after stating the facts). The record does not show an exception to the giving of the special charge, so that the question so ably argued is not presented by the record. The special charge seems to have been fashioned after the ruling in Brian v. Bennett, 8 C. & P. 724, where an omnibus stopped to take on a person who had hailed it, but started just as he was putting his foot on the step so that he was thrown down and injured. The court said: "I think that the stopping of the omnibus implies consent to take the plaintiff as a passenger, and that it is evidence to go to the jury." It is to be observed that the facts here are materially different and that the instruction goes farther, and that its correctness may be questioned. The relation of carrier and passenger arises from contract. The passenger must expressly or impliedly have agreed to compensate the carrier to transport him, and the carrier must expressly or impliedly have agreed to carry him, and performance of the contract must have been commenced and the passenger be under the care of the carrier. But, as has been said, the question is not presented in the record, and even if an exception to the charge had been noted, it would not have been necessary to determine the question, for the court held that the maxim "res ipsa loquitur" applied, and, in effect, instructed the jury that there was a legal presumption that the defendant was negligent from the fact that the trolley fell and injured the plaintiff although she was not a passenger, but only about to become one.

It has been held in some cases that the maxim applies only where the relation of carrier and passenger exists, but, while the presumption may arise when that relation exists from circumstances that in the absence of such relation would not give rise to it, attention to the reason of the maxim and to decided cases as well will show that it does not depend upon the existence of that relation. In Cooley on Torts, 799, the learned author says: "The rule applied to carriers and passengers is not a special rule to govern only their conduct, but is a general rule which may be applied wherever the circumstances impose upon one party alone the obligation of special care.” In Judson v. Giant Powder Co., 107 Cal. 549, 555, 40 Pac. 1020, 29 L. R. A. 718, 48 Am. St. Rep. 146, which was a case of destruction of property by an explosion of dynamite, Garoutte, J., says: "As was well said by the court in Rose v. Stephens, etc., Co. (C. C.) 11 Fed. 438: 'Undoubtedly the presumption has been more frequently applied in cases of carriers of passengers than in any other class, but there is no foundation of authority or reason for any such limitation of the rule of evidence. The presumption originates from the nature of the act, not from the nature of the relation between the parties.' The carrier's contract with his passenger is simply to exercise a certain degree of care in his transportation. It is the

duty which the law enjoins upon him; and the law also enjoins the duty upon this appellant and all others, in the conduct of their business, to exercise a certain degree of care toward this respondent and all mankind. The duty which the law enjoins in the two cases only differs in the degree of care to be exercised. The principle of law involved is wholly the same; and, as has been said, the reason of the rule is not found in the nature of the relations existing between the party insuring and the party insured. The presumption arises from the inherent nature and character of the act causing the injury. Presumption arises from the doctrine of probabilities. The future is measured and weighed by the past, and presumptions are created from the experience of the past. What has happened in the past, under the same conditions, will probably happen in the future, and ordinary and probable results will be presumed to take place until the contrary is shown." The maxim is thus stated by Shearman & Redfield on Negligence (5th Ed.) 59: "Proof of an injury, occurring as the proximate result of an act of the defendant, which would not usually, if done with due care, have injured any one, is enough to make out a presumption of negligence. When a thing which causes the injury is shown to be under the management of the defendant, and the accident is such as, in the ordinary course of things, does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care."

The following cases selected at random from a much longer list, will serve to illustrate the application of the maxim in cases where the relation between the parties was not based upon contract: Mullen v. St. John et al., 57 N. Y. 567, 15 Am. Rep. 530, is one of the earliest and a leading case in this country. In that case the wall of a building fell out and a person standing on the sidewalk was injured by the bricks and mortar. It was held that the maxim applied. In Scott v. London Dock Co., 3 Hurl. & Colt. 596, an injury had been caused by the falling of bags of sugar on the plaintiff as he was passing by a warehouse. The court said: "There must be reasonable evidence of negligence. But where the thing is shown to be under the management of defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." In Richmond Ry., etc., Co. v. Hudgins, 100 Va. 409, 41 S. E. 736, the plaintiff's horse took fright from the sudden stopping of an electric car and an unusual volume of smoke coming from under it. In Campbell v. Consolidated Traction Co., 201 Pa. 167, 50 Atl.

829, the plaintiff was seated in his wagon which was standing on a track of the defendant's road in one of the streets of the city of Pittsburg. In front of him were two cars, the second car in front of him moved across the track on an ascending grade. The trolley pole slipped from the wire and the car stopped and then slipped backward about 60 feet and struck the car back of it, and the force of the collision drove the rear car against the plaintiff's horse and wagon, or the motorman of that car moved it backward to avoid a collision. In Uggla v. West End Street Railway Co., 160 Mass. 351, 35 N. E. 1126, 39 Am. St. Rep. 481, the plaintiff, while driving on Park Square in Bos

ton, was struck by a broken iron attached to a wire guy. The iron was part of an ear used to clasp a trolley wire and applied to it a strain from the guy, in order to keep the trolley wire in place around a curve and over the defendant's track. The ear broke with the strain, and one part of it fell, striking the plaintiff on his head. In Manning v. West End Street Railway Co., 166 Mass. 230, 44 N. E. 135, a switch stick flew from the hands of the conductor as he was using it on the top of an electric car and injured a person on the sidewalk in the street. The conductor was using the stick to free a trolley which had caught in the frog at the junction of some overhead wires. Similar accidents had occurred there half a dozen times before. Held, in an action for personal injuries, that there was evidence of defendant's negligence, either in defective construction of the trolley wires and poles, or in the conductor's use of the switch stick. In Thomas v. Western Union Telegraph Co., 100 Mass. 156, the hind wheels of plaintiff's wagon became entangled with one of the defendant's wires which was swinging across a public highway. Held, that the fact, unexplained and unaccounted for, that the wire was in such a condition, was, in itself, evidence for the jury on the issue of negligence of the defendant. In Hogan v. Manhattan Railroad Co., 149 N. Y. 23, 43 N. E. 403, a piece of iron fell from an elevated railroad structure in a city street upon a person lawfully in the street. In Clarke v. Nassau Electric Railroad Co., 9 App. Div. (N. Y.) 51, 41 N. Y. Supp. 78, the plaintiff's horse stepped upon one of the rails of the defendant's tracks, sprang into the air, and fell down upon the track, where it died in a few minutes. The plaintiff also received a shock when he seized the hames of the harness. In Jones v. Union Railway Co., 18 App. Div. (N. Y.) 267, 46 N. Y. Supp. 321, one of the span wires that supported the trolley wires of defendant's railroad broke and swung to the sidewalk where it struck and injured the plaintiff. In O'Flaherty v. Nassau Electric Railroad Company, 34 App. Div. (N. Y.) 74, 54 N. Y. Supp. 96, a trolley wire used in connection with the defendant's railroad broke and fell to the ground, and the current shock

ed the plaintiff. This case is approved without report in 165 N. Y. 624, 59 N. E. 1128.

The plaintiff was not only lawfully in the street, but she stood where she had an implied invitation from the defendant to stand, and it was the duty of the defendant to use reasonable care to avoid injuring her; and the court was warranted in taking judicial notice of the fact, as it did, that such a thing as the breaking of the trolley pole and the falling of the trolley with a portion of the pole does not happen in the ordinary course of events, unless there was some negligence either in its construction or in the management of it; and, this being so, the court very properly charged the jury that the plaintiff, in the absence of any evidence tending to rebut the presumption of negligence, was entitled to recover for her injuries. The judgment is affirmed.

PRICE, CREW, and SPEAR, JJ., concur.

(185 N. Y. 607)

In re PIER OLD NO. 15, EAST RIVER.
CITY OF NEW YORK v. MORRIS.
(Court of Appeals of New York. June 19, 1906.)
EMINENT DOMAIN - COMPENSATION-AMOUNT
-TIME OF TAKING.

Though a right to the exclusive use of a pier, and to be relieved of the burden of having vessels put in at a wharf, may be subject to legislative repeal, still, no repeal having been made at the time of the acquisition of the property by a city, its value should be estimated under the existing condition of the laws.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 332-344.]

Appeal from Supreme Court, Appellate Division, First Department.

Application of the city of New York, through the board of docks, against Augustus Newbold Morris, as trustee, and others, to acquire title to wharfage rights. From an order of the Appellate Division, affirming an order of the Special Term confirming the report of commissioners, the city appeals. Affirmed.

John J. Delany, Corp. Counsel (Theodore Connoly and Charles D. Olendorf, of counsel), for appellant. Truman H. Baldwin, for respondents.

PER CURIAM. While we do not assent to the doctrine that the right of the pier owners to an exclusive use of the pier as a shedded pier, and to be relieved of the burden of having vessels put in at the wharf was beyond legislative repeal or modification, still, as at the time this property was acquired by the city no such repeal had been made, the value of the property was to be estimated under the existing conditions of the law. While the report states that the award was made upon. the theory of the right being in perpetuity, still the entire record discloses that it was made in accordance with the true rights of the parties.

The order should be affirmed, with costs.

CULLEN, C. J., and GRAY, O'BRIEN, EDWARD T. BARTLETT, WERNER, and HISCOCK, JJ., concur. CHASE, J. absent.

Order affirmed.

(192 Mass. 511) ·

JUMP v. LEON.

(Supreme Judicial Court of Massachusetts. Suffolk. Sept. 4, 1906.)

1. SET-OFF BROUGHT.

DEBTS ACQUIRED AFTER SUIT

Under Rev. Laws, c. 174, § 1, providing that if, at the commencement of an action on a contract, the defendant has in his own right a claim against plaintiff of the nature specified, or such a claim which had been assigned to him with notice thereof to plaintiff, it may be set off against plaintiff's claim, a claim acquired by defendant after the commencement of the action is not available as a set-off.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Set-Off and Counterclaim, § 121.] 2. BILLS AND NOTES NEGOTIABLE NOTESINDORSEMENT IN BLANK RIGHTS HOLDER.

OF

The holder of a negotiable note indorsed in blank, to which he has no title or in which he has no beneficial interest, may maintain after maturity a suit thereon against the maker with the assent of the real owner, to whom, when recovered, he is accountable for the proceeds.

[Ed. Note. For cases in point, see vol. 7, Cent. Dig. Bills and Notes, §§ 1418, 1419.] 3. SET-OFF-PARTIES.

Under Rev. Laws, c. 174, § 5, providing that, in any action brought by one person in trust or for the use or benefit of another, the defendant may set off a claim against the beneficiary, the fact that a suit on certain notes indorsed in blank was brought by a person other than the real party in interest for the latter's sole benefit could not deprive the defendant of a set-off otherwise available.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Set-Off and Counterclaim, § 101.] 4. EXECUTORS-ACTIONS-TIME.

Where defendant acquired certain notes for value and in good faith, which matured December 10, 1904, and the maker died on December 13th that year, an action was not maintainable against the maker's executrix thereon until the expiration of a year after her appointment, as provided by Rev. Laws, c. 141, § 1.

5. SAME-ACTIONS-INSOLVENCY OF ESTATE

PROOF.

In an action on certain notes for the benefit of a decedent's estate, the executrix not having chosen to have the estate declared insolvent in the probate court, the fact of actual insolvency I could not be shown by the defendant for the purpose of sustaining an equitable set-off, under Rev. Laws, c. 173, § 28, providing that the defendant may allege in defense any facts which would entitle him in equity to absolute and unconditional relief against plaintiff's claim or against any judgment recovered by plaintiff in the action.

6. SET-OFF-EQUITABLE SET-OFF.

Where suit was brought on certain notes for the benefit of an estate by the holder, who had no beneficial interest therein, and defendant, after suit brought, purchased notes against testator on which he could not sue by reason of a special statute of limitations, he was not entitled to set off such notes against the notes sued on, the estate not having been declared insolvent, but was entitled to a continuance of plaintiff's case after verdict until a judgment

could be obtained on defendant's notes, so that the judgments could be set off.

Report from Supreme Judicial Court, Suffolk County; Wm. C. Wait, Judge.

Action by one Jump against one Leon on two notes. The defense was a general denial and payment, and an equitable defense that the notes were owned, not by plaintiff, but by one Bates, who died pending the suit, and that defendant held notes of Bates to a larger amount, that Bates' estate was inSolvent, and that defendant was entitled to a set-off of his notes. The verdict was returned in favor of plaintiff for $610.44 disallowing the set-off, and the case was reported to the Supreme Judicial Court. Judg ment for plaintiff.

Walter H. Thorpe, for plaintiff. Fred L. Norton, for defendant.

BRALEY, J. Under Rev. Laws, c. 174, § 1, if suit on the promissory notes set out in the declaration had been brought by Bates in his own name, and after his death prosecuted by his executrix, the defendant by reason of the statute could not at law have had by way of set-off the benefit of the counterclaim now pleaded as an equitable defense, though the notes held by him were purchased in the lifetime of the testator, be cause he did not acquire title until after the commencement of the action. Cook v. Mills, 5 Allen, 36; Backus v. Spaulding, 129 Mass. 234, 236.

By repeated decisions beginning with Little v. O'Brien, 9 Mass. 423, it has been settled that the holder of negotiable paper indorsed in blank to which he has no legal title, or in which he has no beneficial in. terest may maintain after maturity a suit thereon against the maker, with the assent of the real owner to whom when recovered he is accountable for the proceeds. Whitten v. Hayden, 9 Allen, 408; Wheeler v. Johnson, 97 Mass. 39; National Pemberton Bank v. Porter, 125 Mass. 333, 335, 28 Am. Rep. 235; Spofford v. Norton, 126 Mass. 533; Parks v. Smith, 155 Mass. 26, 31; Prescott National Bank v. Butler, 157 Mass. 548, 32 N. E. 909; Regina Flour Mills Co. v. Holmes, 156 Mass. 11, 30 N. E. 176; Haskell v. Avery, 181 Mass. 106, 63 N. E. 15, 92 Am. St. Rep. 401; New England Trust Co. v. New York Belting & Packing Co., 166 Mass. 42, 45, 43 N. E. 928; Fay v. Hunt, 190 Mass. 378, 77 N. E. 502. See Towne v. Wason, 128 Mass. 517. It is unnecessary, however, to decide whether the placing of the notes by Bates in the hands of an attorney at law with directions to collect them, but with no further instructions, or whether there being no disclosure of any facts on the evidence which rendered such a course on his part necessary or advisable, constituted a sufficient authorization for him to transfer them to the plaintiff for the purpose of having the suit brought in his name, for the exceptions to the refusals to rule,